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Advantages and disadvantages of restorative and retributive justice
Advantages and disadvantages of restorative and retributive justice
Concepts of restorative justice
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The purpose of this paper is to examine the processes of both Restorative and Retributive justice through the case of Sara Kruzan vs. The State of California. First we will establish the principle philosophers associated with each type of justice and those system's theoretical applications in our criminal justice system. Then we will apply both systems to Sara Kruzan's trail and determine the publishable outcomes. Finally we will review Sara's Life after her trial and speculate on what system would have produced a more just outcome.
Immanuel Kant has long been considered an exemplar of the retributive system. He claims punishment, retributive justice's primary reaction to wrongdoing(4), is the only way justice is upheld, and the state needs
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only the proven guilt of the offender as justification for punishment(6). The client orientated focus of retributive justice also aliens with Kant's ideals that the upholding of the law is the only means justice should pursue. All other uses of punishment, such as rehabilitation (offender focused) or deterrence (community focused) uses the offender as a means and demeans the law(s) broken(6). The severity of the punishment according to Kant must be measured to the severity of the wrongdoing(4), however they should not be equal in proportion, rather the punishment should out weight the wrongdoing(6). For instance if an offender takes a victim's eye without connect, the state coerces the offender into repaying the victim five times the value of the eye and may further restrict the offender's freedoms for a number of years until the damage to the law is repaid. Traditionally this is the heart of the ancient and biblical “eye for an eye” retribution style of punishment(4). An ancient account of this same scenario says that under threat of losing their own eye as repayment for taking another, the offender is more willing to pay a greater price to keep theirs(1). Kant supports this measurement for punishment because all other measurements bring into consideration elements besides strict justice, such as the psychological states of others, such as the victim who would measure the effectiveness of various possible punishments on revenge(6). Retributive justice places values on wrong actions and coerces repayment from the offender even to the point of blood for blood, leading to Kant's insistence on capital punishment.
He argues that the only punishment possibly equivalent to death, the amount of inflicted harm, is death. Death is qualitatively different from any kind of life, so no substitute could be found that would equal death(6). The down side of the retributive system of just can be observed in our modern practices of zero tolerance laws. These laws have placed values of some wrongdoings so high that punishment for relatively minor offenses can see an offender detained for substantially longer than arguably needed to repay the harm they caused. Placing a grater demand on our prison facilities and creates a circle of offense and …show more content…
punishment(4). Justice as fairness is John Rawls's theory of justice.
It aims to describe an arrangement of the major political and social institutions of a society such as the constitution, legal system, economy, family, and so on as being fair. Fairness is also at the core of restorative justice. Unlike the retributive system restorative justice is concerned with reforming. Not just the offender but the wrongdoing itself. As previously mentioned, the victim is not primary subject of the retributive system the law or state is. This is an unfair assurance of power by the state over the victim, to the point they where the victim may even feel re-victimized. The State assess what was lost, the state gets to talk at the trial, the victim rarely gets a chance to even see the offender before the trial. By keeping the participants of the trial apart the likelihood of proliferating long lasting resentment, and emotional trauma increases. Dining both parties closure and healing. Rawls believes the state should only be the facilitator of these communications between the parties not key participant in the
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Greg Mantle, F. D., & Dhami, M. K. (2005). Restorative justice and three individual theories of crime. Internet Journal of Criminology IJC , 1-36. Retrieved from http://www.restorativejustice.org/articlesdb/articles/5914
Similarly to rehabilitation, restoration looks to better society, however, this approach to justice emphasises the needs of the victim. In cases of minor crimes such as vandalism or petty theft, restoration is preferable to rehabilitation. This is because those who commit these minor crimes often don’t have the need for rehabilitation as mental health isn’t a large concern. In these small cases, it is also not burdensome to compensate for the losses of the victim, making restoration the ideal
The symbol of the Canadian judicial system is the balanced scales of justice. When a wrongful act is committed, the scales of justice are greatly misplaced and require a solution to counterbalance the crime and restore balance. Additionally, the scales represent the idea that law should be viewed objectively and the determination of innocence should be made without bias. The Canadian criminal justice system encapsulates the idea of the scale of justice, to control crime and impose penalties on those who violate the law. One of the most important aspects of this system is that an individual charged with a criminal offence is presumed innocent until proven guilty beyond a reasonable doubt. The current system has two prevailing methods involved in the process of dealing with crime: Retributive and restorative justice. This paper will analyze aspects of retributive justice and restorative justice, with reference to their respective philosophies, for the purpose of finding which is more effective at achieving justice and maintaining balance.
This paper considers the desert arguments raised to support retributivism, or retribution. Retributivism is "the application of the Principle of Desert to the special case of criminal punishment." Russ Shafer-Landau and James Rachels offer very different perspectives on moral desert which ground their differing views on the appropriate response to wrongdoing. In "The Failure of Retributivism," Shafer-Landau contends that retributivism fails to function as a comprehensive theoretical foundation for the legal use of punishment. In contrast, in his article "Punishment and Desert," Rachels uses the four principles of guilt, equal treatment, proportionality and excuses to illustrate the superiority of retribution as the basis for the justice system over two alternatives: deterrence and rehabilitation. Their philosophical treatment of the term leads to divergence on the justification of legal punishment. Ultimately, Rachels offers a more compelling view of desert than Shafer-Landau and, subsequently, better justifies his endorsement of a retributive justice system.
Forfeiture-based retributivism is a solution to justifying punishment. Forfeiture-based retributivism claims that it is morally permissible to punish an individual who has committed an offence because they have violated another individual’s right to something and there for forfeit the same right or one similar (Boonin p.105). This essay will cover some of the objections that David Boonin presents for forfeiture-based retributivism and why I think his objections do not work
As the purpose of restorative justice is to mend the very relationship between the victim, offender, and society, communities that embrace restorative justice foster an awareness on how the act has harmed others. Braithwaite (1989) notes that by rejecting only the criminal act and not the offender, restorative justice allows for a closer empathetic relationship between the offender, victims, and community. By acknowledging the intrinsic worth of the offender and their ability to contribute back to the community, restorative justice shows how all individuals are capable of being useful despite criminal acts previous. This encourages offenders to safely reintegrate into society, as they are encouraged to rejoin and find rapport with the community through their emotions and
There are four different types of Justice Systems, Distributive and Retributive are the two systems that are very different yet alike. Both of these systems serve different purposes whether they have a positive or negative effect. Distributive is all about equality hoping to balance everything without causing problems. Retributive is about punishing those who have disobeyed in exchange for a positive outcome. Equality and punishment are main principles in the system but how diverse they are and the results they provide are what is intriguing.
Yes, I believe restorative justice should be implemented because it not only provides justice but healing for the each party involved. Providing real results and closure that being locked behind bars cannot completely cover. If restorative justice were to be implemented it should use models three in chapter name of the Ness & Strong textbook. Model three using the dual track approach, in which two systems are used are offered. It will be up to the stakeholders to decide how the go when processing the crime three the criminal system or by using restorative practices. One of the deciding factors when making a decision relies on the crimes seriousness, I feel that if a crime is as serious as putting someone on death row than they are willing to try the
Special attention will be given to the topics of deterrence, the families of the victims, and the increased population that has been occurring within our prisons. Any possible objections will also be assessed, including criticism regarding the monetary value of the use of the death penalty and opposition to this practice due to its characteristics, which some identify as hypocritical and inhumane. My goal in arguing for the moral justifiability of capital punishment is not to use this practice extensively, but rather to reduce the use to a minimum and use it only when necessary. Above all else, capital punishment should be morally justified in extreme situations because it has a deterrent effect. Many criminals seem to be threatened more by the thought of death rather than a long-term prison sentence.
A real world example of retributive justice would be capital punishment. The National Research Council found that in 2012, 88% of people said the death penalty does not deter them from committing a crime that is punishable by execution. The criminal justice system is flawed in the way that for some crimes, such as Victoria’s, officials will treat offenders exactly how the offender treated their victim. When dealing with other crimes, officials will just lock up the criminals, they will receive no media attention and will not be used to entertain citizens with their own boring
“Restorative justice is an approach to crime and other wrongdoings that focuses on repairing harm and encouraging responsibility and involvement of the parties impacted by the wrong.” This quote comes from a leading restorative justice scholar named Howard Zehr. The process of restorative justice necessitates a shift in responsibility for addressing crime. In a restorative justice process, the citizens who have been affected by a crime must take an active role in addressing that crime. Although law professionals may have secondary roles in facilitating the restorative justice process, it is the citizens who must take up the majority of the responsibility in healing the pains caused by crime. Restorative justice is a very broad subject and has many other topics inside of it. The main goal of the restorative justice system is to focus on the needs of the victims, the offenders, and the community, and focus
Retributivism is a theory of punishment consistently linked to the concept of vengeance. Vengeance is an act of retaliation as retributivism is a punishment inflicted on individuals who have engaged in a criminal act and are given a punishment in proportionate to the crime they have committed. Although, retributive justice differs from vengeance, this theory and concept are constantly perceived as having the same meaning. In the excerpt, Punishment, Brooks highlights the key differences between retributivism and vengeance and provides a more thorough understanding between this
Restorative Justice Used in Public Schools In 1977, a psychologist by the name of Albert Eglash first coined the word restorative justice while working with incarcerated people. He believed that it was a way to focus on the needs of the victims and the offenders as well as getting involved in the community. Restorative justice is a peaceful approach to addressing harm, violations of legal and human rights, and problem solving. Although restorative justice has been the main focus point in Schools in the U.S., it is also used in the juvenile system and in schools outside of the U.S. Schools across the country have adopted multiple approaches under the restorative justice umbrella to transition away from their traditional punishment
Another popular approach to justifying punishment comes from retributivist theory, which can be divided into, first, the desert argument, and then the fair play argument. Before a discussion on these theories may begin, it is important to note that unlike the consequentialist argument that looks at the aggregate, these retributivist theories primarily situate the justification of punishment on the individual insofar as that the individual deserves to be punished. This paper contends that although this is a significant consideration, there are still limitations to these approaches. To start, the just deserts argument begins with a central notion that individuals deserve to suffer punishment as a result of their “voluntary commission of an offence”.
There are four main theories of justice retributive, utilitarian, restorative, and parallel justice. All four theories have different ways of interpreting both procedural and distributive justice. Procedure justice according to Newmark, L. (2017) is the “the process used to determine society’s response to a crime; the steps taken to arrive at an outcome; how society decides what it should do about a crime”. Distributive justice on the other hand has to do with the consequences that one receives from the justice system. The definition of distributive justice is society’s response to the crime; the consequences that society provides for the crime; what society does about a crime; the outcomes resulting from the process” (Newmark, L. 2017). Each theory has a different opinion of how procedural and distributive justice work in the system, but they both apply procedural and distributive justice within the theories. Another similarity can be found between retributive and utilitarian justice, both of these theories of justice are only offender-focused theories. Restorative and parallel justices also have a commonality in the fact that they include victim focused and offender focused justice.